WHEELER v. WADE

27 P. 719

1 Colo.App. 66

WHEELER et al.
v.
WADE et al.

Court of Appeals of Colorado

September 14, 1891

Appeal
from district court, Pitkin county; THOMAS A. RUCKER, Judge.

Action
by Jerome B. Wheeler and D.M. Van Hovenberg against John Wade
and Helena Connors, to determine the right to certain real
estate. Judgment dismissing the action. Plaintiffs appeal.
Affirmed.

Porter
Plumb and W.W. Cooley, for appellants.

[1
Colo.App. 67] Wilson & Stimson, for appellees.

REED,
C.

On the
2d day of June, 1881, J.W. Deane was the county and probate
judge of Pitkin county, and as such made application to enter
at the district land-office the town-site of Aspen under the
provisions of the act of congress of March 2, 1867. The
application was accepted and the necessary money to perfect
the entry was paid. From causes not necessary to be here
stated the entry was suspended, and so remained until the 3d
day of March, 1885, when the patent issued. The portion of
the statute necessary to be considered is as follows,
(section 2387, Rev.St.U.S.:) "It is lawful, in case such
town be incorporated, for the corporate authorities thereof,
and, if not incorporated, for the judge of the county court
for the county in which such town is situated, to enter at
the proper land-office, and at the minimum price, the land so
settled and occupied, in trust for the several use and
benefit of the occupants thereof, according to their
respective interests; the execution of which trust, as to the
disposal of the lots in such
[27 P. 720.]
town, and the proceeds of the sales thereof, to be conducted
under such regulations as may be prescribed by the
legislative authority of the state or territory in which the
same may be situated." The granting clause in the patent
issued is as follows: "Now, know ye, the United States
of America, in consideration," etc., "have given
and granted, and by these presents do give and grant, unto
the said J.W. Deane, county and probate judge aforesaid, and
to his successors and assigns, in trust as aforesaid, the
said tract above described, [describing the Aspen town-site;]
to have and to hold the same, together with all rights, ***
unto the said J.W. Deane, county and probate judge as
aforesaid, and to his successors and assigns as
aforesaid." It appears that prior to the grant to Judge
Deane the town had become incorporated. The corporate
authorities, assuming to succeed to the trust of Judge Deane,
and assuming [1 Colo.App. 68] the right to dispose of the
lots of the town, published a notice requiring claimants to
file their respective claims within 90 days. One George E.
Triplett, within the designated time, filed a claim to the
lot in controversy in this case. Afterwards Byron E. Shear
was appointed by the board of trustees of the town of Aspen a
commissioner to take proofs and make conveyances to
claimants. On the 8th day of December, 1884, Triplett, being
the only claimant to the lot in controversy, paid for the
same, and took a conveyance from Shear as commissioner or
agent of the corporate authorities of the town. The lot
afterwards, by mesne conveyances, became vested in the
appellants. On the 18th day of October, 1885, Thomas A.
Rucker became county and probate judge of Pitkin county, and
the successor of Judge Deane, who had, as is alleged,
assigned or transferred to him the property in trust for the
purposes of the grant. While acting by virtue of his office
as trustee, he conveyed the lot in controversy to one
Bermudy, who afterwards conveyed it to appellees. Afterwards,
in July, 1887, M.G. Miller became county and probate judge,
and successor in trust under the grant to Judge Rucker, and
proceeded to advertise and notify claimants of lots to make
applications and proofs of claims and perfect the title to
town lots claimed by them, respectively. Both claimants to
the lot in controversy, feeling insecure in their respective
titles, filed their claims to the property with Judge Miller,
and this suit was brought by appellants (plaintiffs below) to
determine which party had the better title, and which was
entitled to a further conveyance from the then county and
probate judge. Upon the coming in of the answer, a hearing
having been had, the suit was dismissed, and from such
judgment of dismissal this appeal was taken.

The
case of Mayor v. Land Co., 10 Colo. 191, 15 P. 794, and 16 P.
160, appears to be conclusive in this case, not only as a
precedent, but upon sound legal principles. [1 Colo.App. 69]
The conveyance to a claimant, to be effective, must have been
made by the party holding the legal title. The patent from
the United States government vested the title in Judge Deane,
his successors and assigns, in trust "for the several
use and benefit of the occupants thereof." He being
county and probate judge, his successors could only be,
according to all authorities, those succeeding in an official
capacity in the same office. He holding the legal title as
grantee under the patent, his assigns could only be those who
held title by virtue of a conveyance from him or a successor.
It is not necessary to inquire or determine whether a mistake
was made by the department of the interior in issuing the
patent to Judge Deane instead of to the corporate authorities
of the town. It is clear that the patent was sufficient to
pass the legal title to him in trust, and the corporate
authorities of the town could not be a successor, and did not
become an assignee for want of a conveyance from the grantee
in the patent. It follows that all attempts of the corporate
authorities, through Mr. Shear as commissioner or otherwise,
to receive proofs and applications, and make titles to the
respective claimants, were unwarranted and ineffectual; hence
Triplett took no title. Judge Rucker, as successor of Judge
Deane, succeeded to the title in trust, and what title he had
passed by the conveyance to Bermudy. This must be regarded as
an execution of the trust as to the lot in controversy on the
part of the trustee. The power of the trustee was exhausted,
and the conveyance effectual to pass the title unless the
transaction was or can be impeached for error or fraud. As
far as appellees are concerned, we do not deem that any
further conveyance or assurances were needed from the
successor of Judge Rucker. The judgment of the court in
dismissing the suit should be affirmed.